Schumacher v. Bell , 1895 Ill. App. LEXIS 853 ( 1895 )

Mr. Presiding Justice Cartwright

delivered the opinion of the Court.

The original bill in this case was filed by appellees July 1,1892, in the Circuit Court of Kendall County against Henry C. Schumacher and Dorothy Schumacher, his wife, and William E. Schumacher, their son, to set aside a bill of sale of personal property and conveyances of real estate between said parties as fraudulent, and to remove the same out of the way of an execution then issued, or any other execution or process that might be thereafter issued on a judgment for $3,000 obtained by appellees against said Henry C. Schumacher. Said Dorothy Schumacher died, February 22, 1893, intestate, and her death having been suggested, her heirs at law were made defendants to the bill. The venue was changed to the Circuit Court of Kane County, where there was a hearing, and a decree was entered according to the prayer of the bill.

The only point stated or question raised in the brief and argument for appellants filed in this court was that there had been a failure to prove fraud in the execution of the bill of sale and conveyances, and that the findings of the decree in that respect were not sustained by the proofs. It was therein further stated that after counsel for appellees

should show that fraud had been proved, counsel for appellants would have something further to say, in a reply to the argument for appellees. After the argument for appellees, the promise of further suggestions was fulfilled with a lengthy argument abounding in new points, of which there had previously been no hint. In the original brief and argument for appellants it was stated that Dorothy Schumacher died, intestate, on or about February 22,1893, leaving a number of heirs at law, and that they were made parties defendant to the suit. In the reply argument the point is made that there was a lack of proof of her death, and who her heirs were. Other points so made relate to the manner of proof of issuing and serving execution, the demand of property and return, the issue of an alias execution, the form of the decree as to being in the alternative and the like. Appellants were required by the rules of the court to make a statement in their brief of the points on which they relied for a reversal of the decree, and the subsequent privilege extends only to a reply to appellees. Any point not so made is regarded as abandoned, and can not be made for the first time in a reply. The new questions raised by the reply will not be noticed. I. C. R. R. Co. v. Heisner, 45 Ill. App. 143.

It does not seem to be seriously contended that fraud was not proved, and we do not think that there can be much doubt on that question. The suit in which judgment was rendered against Henry C. Schumacher was begun February 25, 1892, and the process of divesting himself of the title to his visible possessions was begun by him. on February 27, 1892, when he made a bill of sale of his personal property to his son, William, who had no means with which to buy, for an expressed consideration of $1,505. On the same day Henry 0. Schumacher and wife conveyed to their said son a house and three lots in Bristol, Kendall county, Illinois, and the son conveyed the same to his mother, the wife of said Henry 0. Schumacher. On March 2, 1892, Henry C. Schumacher and wife executed a mortgage to their said son of about 103 acres of land in the town of Fox, in said county, to secure notes amounting to $3,000, and the son on the same day assigned the mortgage to his said mother. On the same day Henry 0. Schumacher and wife conveyed said 103 acres, which were worth about $50 per acre, to their said son, for an expressed consideration' of $6,000, subject to the mortgage for $3,000, and the son gave a mortgage back to said Henry 0. Schumacher to secure notes to the amount of $6,000, subject to the mortgage of $3,000. Other conveyances were made to correct errors in the foregoing, but it is not necessary to refer to them.

A recital of these transactions we think.sufficient to convince any one that they were not Iona fide, and, under the evidence, they could have had but one object, which was to prevent the collection of the judgment likely to be obtained against Henry 0. Schumacher. The evidence fully justified the decree, and it will be affirmed.